Lance E. Walker, U.S. District Judge.
Although the Court scheduled the hearing on December 5, 2018 to address Plaintiffs' Motion for Preliminary Injunction, the parties agreed that the question of injunctive relief should be consolidated with a final ruling on the merits of the action. Therefore, pursuant to Rule 65(a)(2), this Decision and Order will be accompanied by a final judgment in favor of Defendants.
On November 6, 2018, the State of Maine held a general election at which races for federal office were governed by Maine's "Act to Establish Ranked-Choice Voting" ("RCV Act").
Plaintiffs, Brett Baber, Terry Hamm-Morris, Mary Hartt, and Bruce Poliquin, are residents of Maine's Second Congressional District. Plaintiffs participated in Maine's November 6, 2018, general election, at which each cast a vote for Bruce Poliquin to continue serving as Representative of the Second Congressional District in the United States House of Representatives. They maintain that the RCV Act is unconstitutional, both facially and as applied, and that it violates the Voting Rights Act. They maintain that the ballot form and instructions were too confusing and that the manner by which Defendant Dunlap tabulated the votes diluted the votes cast by Poliquin supporters and otherwise disenfranchised too many Maine voters to withstand scrutiny.
The ballot for the Second District house race provided a choice among four candidates, a space to enter a write-in candidate, and a manner by which to rank the candidates, in the following form:
Rep. to Congress 1st Choice 2nd Choice 3rd Choice 4th Choice 5th Choice District 2 Bond, Trffany L. 0 0 0 0 0 Portland IndependantGolden, Jared F. 0 0 0 0 0 Lewiston DemocraticHoar, William R.S. 0 0 0 0 0 Southwest Harbor IndependentPoliquin, Bruce 0 0 0 0 0 Oakland RepublicanWrite-in 0 0 0 0 0
The ballot included the following instructions:
Plaintiffs each filled in the circle for Bruce Poliquin shown in the first-choice column of the ballot. They did not fill in any other circles. Many other voters took the same approach. Some voters expressed equivalent support for Mr. Poliquin, but filled in the Poliquin circle in every column of the ballot. These voters, in other words, elected not to rank any candidate other than their preferred candidate. Other voters expressed their support for the other candidates in the same fashion. Many other voters chose to rank every candidate. In all, given five potential candidates and five columns, there were 120 different orders in which to rank the candidates, assuming one nominated a write-in and then went on to rank every candidate. There were several other ways in which one might respond to the ballot. For example, 5,582 voters submitted their ballots without filling in any circles.
Following the election, Defendant Dunlap oversaw a process in which his office gathered the ballots and tabulated the election results. On November 7, Defendant Dunlap announced that, based on the tabulation of all "first choice" votes, no contestant in the race achieved victory by a majority. The results of the initial tabulation were as follows:
Candidate Votes Bruce Poliquin 134,184 Jared Golden 132,013 Tiffany Bond 16,552 William Hoar 6,875 TOTALS 289,6244
Candidate Votes Percentage Jared Golden 142,440 50.62% Bruce Poliquin 138,931 49.38% TOTALS 281,3716 100%
Because the Secretary of State certified Jared Golden as the winner of the RCV election, Plaintiff Bruce Poliquin requested a recount pursuant to 21-A M.R.S. § 737-A. The recount is under way at this time.
The matter came on for hearing on December 5, 2018. Before hearing oral argument, the Court permitted Plaintiffs to call to the witness stand Dr. James G. Gimpel, Ph.D., a professor at the University of Maryland — College Park. Among other areas of expertise, Dr. Gimpel is well studied in the area of voter behavior. Dr. Gimpel testified that alternative systems for conducting elections, such as RCV, are generally considered by their proponents to be "systems to enhance participation." According to Dr. Gimpel, interest in these systems is growing and, undoubtedly, will lead to more litigation like the litigation now before this Court. Dr. Gimpel has formed the opinion that RCV (or "instant run-off") systems do not offer advantages over a plurality system, or over a majority system that resolves close elections by means of an actual run-off. The primary flaw he sees in RCV is that, unlike ordinary elections and ordinary run-offs, voters are required to make predictions about who will be left standing following an initial tabulation of the votes.
Dr. Gimpel contends that the data of voting behavior for this election (i.e., the ballots in this election) reinforce his opinion. He observes that thousands of voters cast ballots that were invalid, and that the most logical inference is that those voters guessed wrong due to an information deficit. Dr. Gimpel presumes that the voters in this category are predominantly independent voters, meaning they have no party affiliation. By his reasoning, independent voters such as Ms. Bond and Mr. Hoar's supporters are, on average, less informed on the issues.
On cross examination, Dr. Gimpel testified that he did not interview or consider any interviews or studies of actual Maine voters, but that, remarkably, he would like to develop a survey to evaluate what voters were thinking. When asked to articulate why the ballot and the voting instructions were confusing, Dr. Gimpel testified that the worst thing about the ballot and instructions is what was omitted from the instructions. In particular, Dr. Gimpel suggested the instructions should have explained the various ways in which a vote could be invalidated. Dr. Gimpel was asked to evaluate Plaintiffs' contention that RCV is flawed because it fails to produce "monotonic" results.
In addition to their constitutional challenges to the RCV Act, Plaintiffs allege that the Act deprived them of rights protected under the Voting Rights Act. The Voting Rights Act subjects certain states to "preclearance" oversight when they enforce a new "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting." Presley v. Etowah Cty. Comm'n, 502 U.S. 491, 494, 112 S.Ct. 820, 117 L.Ed.2d 51 (1992) (quoting 52 U.S.C. § 10304). Additionally, individuals can bring suit to prevent "any State or political subdivision" from imposing any electoral practice "which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) [concerning language minority groups]." 52 U.S.C. § 10301(a). "The Voting Rights Act `implemented Congress' firm intention to rid the country of racial discrimination in voting.'" Hathorn v. Lovorn, 457 U.S. 255, 268, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982) (quoting Allen v. State Board of Elections, 393 U.S. 544, 548, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969)). Plaintiffs have not alleged facts or otherwise shown that the Voting Rights Act has any application to this case.
Article I, section 2, clause 1 of the Constitution provides, in relevant part, as follows: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States...." Furthermore, Article I, section 4, clause 1, provides: "The Times, Places and Manner of holding Elections
Smiley v. Holm, 285 U.S. 355, 366, 52 S.Ct. 397, 76 S.Ct. 795 (1932). See also Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 8, 133 S.Ct. 2247, 186 L.Ed.2d 239 (2013).
The First Article of the Constitution, in effect, assigns to the People of the several States the authority to choose their representatives to the national Congress, and directs that the States shall prescribe the times, places, and manner by which representative are chosen. Though Congress has the power to regulate state elections, "if there be no overruling action by the Congress" then suitable regulations "may be provided by the Legislature of the state upon the same subject." Smiley, 285 U.S. at 367, 52 S.Ct. 397.
Plaintiffs argue that the force of history calls for the Court to interpret Article I as requiring a plurality or "first-past-the-post" standard for deciding election results. There is no textual support for this argument and a great deal of historical support to undermine it. As a practical observation, it is curious that states which still utilize a majority standard have managed to escape constitutional scrutiny under Article I. The American experiment in republican-representative government neither began nor ended with ratification of the Constitution. The values that informed Article I not only inspired the Revolution, but also continued a purposeful evolution in our national experiment in representative government. It is clear from The Federalist Papers and other public debates leading up to the ratification of the Constitution that federalism was its intellectual lodestar and was to act as a bulwark against the perceived threat of centralized political authority by allowing for political tolerance. Therefore, the powers delegated by the Constitution to
The delegates to the Continental Congress debated vigorously the wording of Article I.
In the early days of the Republic, paper ballots were a new and welcome innovation in some states, and the secret ballot had not gained general acceptance. John Doe No. 1 v. Reed, 561 U.S. 186, 225, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010) (Scalia, J., concurring). Only a subset of adult males were entitled to vote. There was no uniform election day. As the nation evolved, so too did the manner by which states conducted elections. Many states gravitated toward plurality systems. Others aspired to a majority and were willing to assume the burden of a run-off election to obtain that result. Gradually, the suffrage was expanded to unpropertied men, to women, and to minorities. In time, non-party candidates gained access to the ballot. Many of these changes were marked by considerable social upheaval, and many long-settled expectations were gradually, if not precipitously, undone by changes in popular sentiments.
Whether RCV is a better method for holding elections is not a question for which the Constitution holds the answer. By design, the freedoms and burdens of self-governance leave normative questions of policy to be worked out in the public square and answered at the ballot box. To the extent that the Plaintiffs call into question the wisdom of using RCV, they are free to do so but for the reasons that I have indicated previously and upon which I elaborate presently, such criticism falls short of constitutional impropriety. A majority of Maine voters have rejected that criticism and Article I does not empower this Court to second guess the considered judgment of the polity on the basis of the tautological observation that RCV may suffer from problems, as all voting systems do. The proper question for the Court is whether RCV voting is incompatible with the text of Article I by giving the language its plain and ordinary meaning. D.C. v. Heller, 554 U.S. 570, 576, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (quoting United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220, 75 S.Ct. 640 (1931) ("The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.")).
Exercising the power vested in them by Article I, "[t]he people, in several States, functioning as the lawmaking body for the purpose at hand, have used the initiative to install a host of regulations governing the `Times, Places and Manner' of holding federal elections," Arizona State Legislature v. Arizona Indep. Redistricting Comm'n, ___ U.S. ___, 135 S.Ct. 2652, 2676, 192 L.Ed.2d 704 (2015), and the people of Maine are no exception.
In the final analysis, RCV is not invalidated by Article I because there is no textual support for such a result and because it is not inherently inconsistent with our Nation's republican values. In fact, the opposite is true. In discussing the dangers of political factions to a "wellconstructed Union," James Madison made some observations that are worth considering when evaluating the bona fides of ranked-choice voting.
THE FEDERALIST No. 10.
Madison's concern for a political system that checked the power of factions is as timely today as it was in the Eighteenth Century. Maine's RCV Act reflects the view of a majority of the voting public in Maine that their interests may be better
Although I find that the RCV Act is not incompatible with Article I, I must still consider whether Defendant Dunlap's implementation of RCV in the November 6, 2018 election deprived Plaintiffs of individual rights protected by the Fourteenth Amendment. These claims arise under the federal civil rights statute, which states, in relevant part:
42 U.S.C. § 1983. "Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). Plaintiffs contend Defendant Dunlap's application of RCV to the Second District house race deprived them of rights guaranteed under the Fourteenth Amendment's Equal Protection Clause and Due Process Clause, and under the First Amendment, which is incorporated into the substantive protection the Fourteenth Amendment extends to citizens in their dealings with the state governments.
When it comes to voting rights, the bedrock principle of the Equal Protection Clause is that "a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction." Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). A state violates the Clause where a manner of election is enacted that "impairs the ability of a protected class to elect its candidate of choice on an equal basis with other voters." Johnson v. De Grandy, 512 U.S. 997, 1007, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) (internal quotations omitted) (applying Section 2 of the Voting Rights Act); see also Hunter v. Erickson, 393 U.S. 385, 391, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969) (equal protection affords all citizens the right to "vote, on an equal basis with others"). Most of what the Supreme Court has said on the topic of equal protection in the election context has related to concerns over balancing majority and minority interests, and much of that language is germane to the issue of whether the will of the People can be expressed through a ranked-choice election process that seeks to understand what, exactly, is the majority will. For example:
Reynolds v. Sims, 377 U.S. 533, 565-66, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).
Citing Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000), Plaintiffs maintain that the RCV Act will deprive them of equal protection under the law.
Motion for Preliminary Injunction at 14.
The "one person, one vote" principle is well established in the law. In Gray v. Sanders, 372 U.S. 368, 374, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), the Supreme Court declared as unlawful a state election system that weighed rural votes more heavily that urban votes, and votes from the smallest rural counties more heavily than those from the larger rural counties. Id. at 379, 83 S.Ct. 801. While the Gray Court recognized the one person, one vote concept, its point was that "equality of voting power" must be preserved. Id. at 381, 83 S.Ct. 801. In other words, the vote cast by each voter must have equal weight; no vote should be disadvantaged (or "diluted") because of the voter's membership in a demographic group or another arbitrary factor. See also
In Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), the Court invalidated a system of electing congressional representatives where congressional districts were of markedly different populations, such that one district's representative would represent two-to-three times as many people as another district's representative. The Court explained:
Wesberry, 376 U.S. at 17-18, 84 S.Ct. 526 (some citations omitted). To the list provided by Madison, one might add, not the party-enrolled more than the unenrolled. The point is that "one person, one vote" does not stand in opposition to ranked balloting, so long as all electors are treated equally at the ballot. See Hadley v. Jr. Coll. Dist. of Metro. Kansas City, 397 U.S. 50, 56, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970) ("[A]s a general rule, whenever a state or local government decides to select persons by popular election ..., the Equal Protection Clause ... requires that each qualified voter must be given an equal opportunity to participate in that election, and ... each district must be established [so] that equal numbers of voters can vote for proportionally equal numbers of officials.").
Plaintiffs insist that their votes received less weight. However, Plaintiffs have not demonstrated that their votes received less
Plaintiffs go on to allege that there is something insidious about a majority vote standard. In their amended complaint, they allege:
Am. Complaint ¶ 61. Contrary to Plaintiffs' allegation, there is nothing inherently improper about an election that requires a contestant to achieve victory by a majority.
Maine has devised a manner of holding elections that seeks to realize the perceived benefits of a majority candidate, while avoiding the shortcomings of a run-off election.
Plaintiffs argue that RCV is susceptible to producing arbitrary or irrational election results. In particular, they maintain that a significant segment of the voting public cannot comprehend RCV sufficiently to cast a meaningful vote.
The Due Process Clause prohibits governmental activity that is "arbitrary" or "purposeless." Bell v. Wolfish, 441 U.S. 520, 584 n.15, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (citing inter alia Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230). Moreover, "[i]f the election process itself reaches the point of patent and fundamental unfairness, a violation of the due process clause may be indicated and relief under § 1983 therefore in order." Griffin v. Burns, 570 F.2d 1065, 1077 (1st Cir. 1978). The crux of Plaintiffs' argument is that the ballot returns reflect that several thousand voters were disenfranchised during tabulation because they cast invalid overvotes or undervotes. Plaintiffs propose that these ballots likely were cast by those voters with the least amount of interest and/or access to reliable information.
To put it generously, Plaintiffs have not demonstrated persuasively that the inferences that they draw from the ballot data are more likely true than false. That is,
Further, I am not persuaded by Dr. Gimpel's testimony which attributes inherent virtue in the forced simplicity of two-party access to the ballot, thereby making easier the voters' choice. He testified to what he perceived as a troubling reality that Maine has a low threshold for non-party candidates to gain access to the ballot. His thesis, as I understand it, is that by allowing for choices among several non-major-party candidates, voter turnout is likely to be comprised of a greater percentage of low-information voters, which apparently makes more likely that those voters are cognitively unable to fill out a RCV ballot. In addition to being cynical, these conclusions are not grounded in anything approaching a reliable standard that may be informative of the constitutional questions. They are instead provocative reactions to a new system of selecting representatives to Congress, and such reactions often are the byproduct of change. Dr. Gimpel's testimony left me with the impression of a panel debate among political scientists in a nascent field of study. To his credit, Dr. Gimpel conceded that he has not discussed the RCV experience with a single Maine voter but would like to conduct such a study. In the meantime, I simply am unable to credit his testimony any weight on the constitutional issues before the Court.
Additionally, Plaintiffs have not demonstrated that the Due Process Clause imposes a lowest-common-denominator standard on the exercise of the suffrage. The Constitution does not require an easy ballot. Griffin v. Roupas, 385 F.3d 1128, 1133 (7th Cir. 2004). In a Nation founded on the principles of republican-representative government, nothing is to be gained from an electoral system that caters to the uninterested and uninformed. The RCV system implemented in Maine is not so opaque and bewildering that it deprives a class of citizens of the fundamental right to vote. In fact, I find the form of the ballot and the associated instructions more than adequate to apprise the voter of how to express preferences among the candidates. Finally, I am not persuaded that it is unduly burdensome for voters to educate themselves about the candidates in order
"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (quoting Wesberry, 376 U.S. at 17, 84 S.Ct. 526). At oral argument, Plaintiffs emphasized that the First Amendment entitles them to express their support for their candidate. They feel that Maine is giving other voters disproportionate expression.
The Supreme Court's first amendment jurisprudence teaches that nondiscriminatory regulations that "burden" the right of individuals to vote must be weighed against the "precise interests put forward by the State as justifications for the burden imposed by its rule." Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 190, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (quoting Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992)). That interest must be "sufficiently weighty to justify" whatever burden befalls Plaintiffs. Id. (quoting Norman v. Reed, 502 U.S. 279, 288-89, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)).
As I indicated in my order denying Plaintiffs' request for a temporary restraining order, there is no dispute that the RCV Act—itself the product of a citizens' initiative involving a great deal of first amendment expression—was motivated by a desire to enable third-party and non-party candidates to participate in the political process, and to enable their supporters to express support, without producing the spoiler effect. In this way, the RCV Act actually encourages First Amendment expression, without discriminating against any voter based on viewpoint, faction or other invalid criteria. Moreover, a search for what exactly the burden is that Plaintiffs want lifted is not a fruitful exercise. I fail to see how Plaintiffs' first amendment right to express themselves in this election were undercut in any fashion by the RCV Act. They expressed their preference for Bruce Poliquin and none other, and their votes were counted.
For the foregoing reasons, Plaintiffs' Motion for Preliminary Injunction and request for permanent injunctive relief are
U.S. Const. Am. XIV, § 1.
